Opinion
Civil Action 22-cv-01237-MDB
07-07-2023
MARIO E. ROMERO, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of the Social Security Administration, Defendant.
ORDER
Maritza Dominguez Braswell Magistrate Judge
Plaintiff Mario Romero appeals an Administrative Law Judge's (“ALJ”) denial of his claims for disability benefits under the Social Security Act. (See [“Plaintiff's Brief”], Doc No. 10.) Plaintiff first filed for disability benefits in February 2010. (AR 113.) In the more than thirteen years since, the matter has been remanded several times, and the ALJ has found that Plaintiff's several impairments limit him to performing only “simple, routine work.” (AR 1387.)
The ALJ's most recent finding stems from a remand in 2018. Prior to that remand, the ALJ found Plaintiff qualified to hold the job of surveillance-system monitor, and thus not eligible for disability benefits. (AR 567-68.) The Social Security Administration Appeals Council remanded the ALJ's decision based on the apparent conflict between Plaintiff's limitation to “simple, routine work” and the “level-three reasoning” required of a surveillance-system monitor. (See AR 1489-90.) Accord Hackett v. Barnhart, 395 F.3d 1168, 1176 (10th Cir. 2005) (finding claimant's limitation to “simple and routine work tasks . . . seems inconsistent with the demands of level-three reasoning” required for the surveillance-system monitor job). In remanding the case, the Appeals Council directed the ALJ to obtain supplemental evidence from a vocational expert (“VE”) to explore this tension. (See AR 1490.) Thus-and consistent with the Appeals Council's remand-if upon review of the additional evidence, the ALJ found level-three reasoning was indeed incompatible with Plaintiff's limitation, the ALJ should have found Plaintiff disabled and awarded benefits in 2018.
The Social Security Administration employs a five-step sequential evaluation process to determine whether a claimant qualifies for disability benefits. See Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). Only step five-whether the SSA Commissioner has demonstrated the claimant can make an adjustment to qualified work based on claimant's residual functioning capacity, age, education, and work experience, 20 C.F.R. § 416.920(a)(4)(v)-is relevant here.
Reasoning Development Levels, as defined in the Dictionary of Occupational Titles (“DOT”), are a division of “General Educational Development” (“GED”) and are rated between “1” and “6.” U.S. Dep't of Labor, Dictionary of Occupational Titles, Vol. II, App. C, III (4th Ed. Rev. 1991). GED “describes the general educational background that makes an individual suitable for the job, broken into the divisions of Reasoning Development, Mathematical Development and Language Development.” Anderson v. Colvin, 514 Fed.Appx. 756, 764 (10th Cir. 2013).
The DOT states that a surveillance-system monitor requires level-three reasoning, see DOT, Vol. I at 281, defined as the ability to “[a]pply commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic form [and d]eal with problems involving several concrete variables in or from standardized situations.” Id. Vol. II at 1011.
On remand, the ALJ elicited testimony from a VE and found “no conflict between a limitation to simple, routine work and a . . . Reasoning level of 3.” (AR 1397-98.) The ALJ thus found Plaintiff fit to work as a surveillance-system monitor and ineligible for disability benefits. (AR 1398.) Plaintiff now challenges that finding on three grounds. (See generally Doc. No. 10.) First, the ALJ did not obtain sufficient evidence from the VE to address the apparent conflict between Plaintiff's limitations and the level-three reasoning required to perform the duties of a surveillance system monitor. (See Doc. No. 10 at 13-18.) Second, the ALJ improperly disregarded opinions from the State agency psychiatrist that support a disability finding. (Id. at 18-20 (citing AR 1393-94).) Third, the ALJ improperly disregarded Plaintiff's physical restrictions, which likely render Plaintiff ineligible to work as a surveillance-system monitor. (Id. at 20-28.)
LEGAL STANDARD
In social security disability cases, a district court's review is limited to determining whether the factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied. Andrade v. Sec'y of Health & Human Servs., 985 F.2d 1045, 1047 (10th Cir. 1993). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Fowler v. Bowen, 876 F.2d 1451, 1453 (10th Cir. 1989) (internal quotation marks omitted). This Court will “meticulously examine the record as a whole, including anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been met,” but it will “not reweigh the evidence or retry the case.” Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007).
ANALYSIS
As noted, Plaintiff raises three issues on appeal. The Court need not address Plaintiff's second or third argument, though both appear meritorious. As explained below, the Court resolves this appeal on Plaintiff's first argument, which is that the ALJ did not elicit a reasonable explanation from the VE about the tension between Plaintiff's limitation to “simple, routine work” and the level-three reasoning that a surveillance-system monitor must apply. (See Doc. No. 10 at 13-18.) Additionally, and given the protracted history of this case, the Court finds a direct award of benefits is warranted. (Id. at 28-30.)
I. The ALJ Did Not Obtain Sufficient Evidence from the VE to Explain the Apparent Conflict Between Plaintiff's Limitations and the Requisite Level-Three Reasoning.
As noted above, the Appeals Council remanded this case and directed the ALJ to elicit testimony from a VE on the following question: Is Plaintiff-who is limited to simple, routine work-suited to a job requiring level-three reasoning? (See AR 1489-90.) If so, there is a single job Plaintiff can perform, and he is ineligible for disability benefits; if not, Plaintiff's limitations foreclose all work, and he is disabled and eligible for disability benefits.
As a general matter, “the ALJ bears the burden . . . to show that there are jobs in the regional or national economies that the claimant can perform with the limitations the ALJ has found him to have.” Hackett v. Barnhart, 395 F.3d 1168, 1088 (10th Cir. 2005). As part of that burden, the ALJ must “thoroughly develop the vocational evidence,” including “[q]uestioning a vocational expert about the source of his opinion . . . .” Haddock v. Apfel, 196 F.3d 1084, 1090- 91 (10th Cir. 1999). Specifically, “before an ALJ may rely on expert vocational evidence as substantial evidence to support a determination of nondisability,” the ALJ must do two things: (1) “ask the expert how his or her testimony as to the exertional [or skill-level] requirement[s] of identified jobs corresponds with the Dictionary of Occupational Titles,” and (2) “elicit a reasonable explanation for any discrepancy on this point.” Id. at 1087; Hackett, 395 F.3d at 1175 (explaining Haddock applies to VE testimony that conflicts with the DOT's prescribed reasoning levels). Importantly, the ALJ should “ask the VE to explain his thought process”-not “settle[] for a summary conclusion.” Haddock, 196 F.3d at 1089; see Id. at 1090 (It would “contravene basic principles of social security law” to “allow an ALJ to elicit and rely on summary conclusions given by a VE.”). The failure to address an apparent conflict between the claimant's limitations and the requirements of jobs identified by the VE is reversible error. See Hackett, 395 F.3d at 1176.
The ALJ did not satisfy this burden here. At the remand hearing, the ALJ twice directly asked the vocational expert whether a job requiring level-three reasoning conflicts with a claimant's limitation to “simple, routine work.” (AR 1427.) The first time, the VE responded:
I traditionally do not think it does and the reason is a GED level is actually a component of worker characteristics versus what a person has to have in going into an employment study, for example. So, the aspects of education with respect to formal or informal, which may contribute to a worker's ability to follow instructions in the workplace for example in that situation, their reasoning level.(Id.) The ALJ did not ask the VE to expound on this equivocal response. On the ALJ's second attempt, the VE responded:
No. Everything level 3 is still being able to apply common sense understanding to carry out instructions, same as [reasoning levels] 1 and 2.(AR 1427-28.) The ALJ adopted the VE's response in her order, explaining that “[a] reasoning level 3 is still being able to apply common sense understanding to carryout [sic] instructions.” (AR 1397.) But the VE's testimony, quoted above, does not substantiate the ALJ's finding. As the Tenth Circuit has observed, a limitation to “simple and routine work tasks . . . seems inconsistent with the demands of level-three reasoning” required for the surveillance-system monitor job. Hackett, 395 F.3d at 1176 (analyzing claimant's suitability for surveillance-system monitor job); see Garcia v. Barnhart, 188 Fed.Appx. 760, 766 (10th Cir. 2006) (unpublished) (noting the level-three reasoning required to work as a surveillance-system monitor is a “higher reasoning level” than is performable by someone limited to “routine, repetitive and simple work”). (Accord AR 1489-90 (Appeals Council remanding to explain this exact “apparent conflict”).) Rather, “level-two reasoning appears more consistent” with a limitation to simple, routine work. Hackett, 395 F.3d at 1176. The DOT describes level-one through -three reasoning as follows:
01 Level Reasoning Development: [The ability to] [a]pply commonsense understanding to carry out simple one- or two-step instructions [and d]eal with standardized situations with occasional or no variables in or from these situations encountered on the job.
02 Level Reasoning Development: [The ability to] [a]pply commonsense understanding to carry out detailed but uninvolved written or oral instructions [and d]eal with problems involving a few concrete variables in or from standardized situations.
03 Level Reasoning Development: [The ability to] [a]pply commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic form [and d]eal with problems involving several concrete variables in or from standardized situations.DOT, Vol. II at 1011 (emphasis added). Yet, the VE's testimony collapsed level-two and -three reasoning into one when responding to the ALJ's question. And the VE did not address the ability to deal with problems involving several variables; nor did she discuss the ability to manage diagrammatic instructions or involved instructions, all requirements that distinguish level three from level two. Instead, the VE articulated generalized reasoning requirements common to every reasoning level in the DOT: a common-sense understanding to carry out instructions. The generalized and summary VE testimony is therefore insufficient. See Haddock, 196 F.3d at 1089 (noting ALJ must “ask the VE to explain [her] thought process”-not “settle[] for a summary conclusion”).
The ALJ's lack of follow up here is particularly problematic given that at the 2018 hearing, the same VE initially told the same ALJ that Plaintiff's specific limitations foreclosed all jobs. (See AR 594-95.)
It is worth noting that level-one reasoning is the only level that uses the term “simple.”
Levels four through six-higher levels of reasoning-implicitly incorporate the ability to carry out common-sense instructions. See DOT, Vol. II at 1011.
The record reveals two other potential explanations for the ALJ's conclusion that Plaintiff is suited to a job requiring level-three reasoning. First, the ALJ asked the VE whether the fact that Plaintiff once obtained a high-school equivalency diploma suggests he now has an ability to perform a job requiring level-three reasoning. (AR 1428.) The VE simply said “yes,” and the ALJ ended her questioning. (Id.) Even if this question factored into the ALJ's no-disability finding-and the Commissioner suggests it did not (see [“Defendant's Response”] at 10, Doc. No. 14)-the relevant issue here “is the amount of [Plaintiff's] decline-[his] residual functional capacity, not [his] prior maximum functional capacity.” Griego v. Kijakazi, No. 21-cv-274, 2022 WL 911128, at *7 (D.N.M. Mar. 29, 2022) (emphasis in original) (finding claimant's high school education was not dispositive of whether claimant could perform a level-three reasoning job; noting the VE's testimony citing to claimant's education did not amount to a reasonable explanation).
Second, the ALJ's order briefly highlights the Specific Vocational Preparation (“SVP”) standard, which describes the amount of time required for a typical worker to prepare for a job. (See AR 1397.) A surveillance-system monitor is classified as SVP 2, which means it takes a typical worker up to 30 days to prepare for the job. See DOT, App'x C, § 2. To the extent the ALJ relied on that SVP classification to resolve concerns about Plaintiff's ability to work as a surveillance-system monitor, that reliance was unwarranted. The ALJ did not ask the VE how the SVP level might bear on the tension between level-three reasoning and Plaintiff's limitations. And in the absence of such explanation, the SVP's relevance is not at all clear. See, e.g., Cabrera v. Colvin, No. 12-cv-1559, 2015 WL 1433245, at *10 (D. Colo. Mar. 26, 2015) (rejecting argument that a job's SVP classification has any bearing on whether a job involves more than “simple tasks”; explaining that “the DOT's explanation of SVP suggests that SVP relates to the vocational preparation required to perform a job and does not address whether a job entails simple tasks, while the [GED], particularly the GED reasoning level, pertains to the complexity of a job”) (internal quotation marks and citation omitted); Mead v. Barnhart, No. 04-cv-139, 2004 WL 2580744, at *2 (D.N.H. Nov. 15, 2004) (“[C]ourts have decided that, contrary to the Commissioner's argument here, the SVP level in a DOT listing, indicating unskilled work, does not address whether a job entails only simple, repetitive tasks. . . . Instead, the [GED] requirements in the DOT listing are more pertinent to determining the complexity of the job, and a ‘GED' reasoning level of 2, or higher, assumes that the applicant is capable of more than simple or repetitive tasks.” (citing, e.g., Lucy v. Chater, 113 F.3d 905, 909 (8th Cir. 1997)); see also AR 1489-90 (Appeals Council remanding ALJ's 2018 order and noting “apparent conflict” despite ALJ's citing SVP level as a reason Plaintiff could perform the surveillance-system monitor job).
For the reasons explained above, the Court reverses the ALJ's decision. In doing so, the Court is mindful that the “substantial evidence” threshold is not high. Even so, the ALJ was given an important task on remand: elicit from the VE a reasonable explanation as to how Plaintiff-limited by the ALJ to “simple, routine work”-could perform the only job the ALJ found Plaintiff fit to hold, which requires level-three reasoning. (AR 1489-90.) The task was not completed. To the extent any testimony was elicited in direct response to the question posed on remand, that testimony was insufficient to explain the tension between Plaintiff's limitations and the level-three reasoning requirement. The deficit in the evidence and the lack of explanation constitutes reversible error. See Hackett, 395 F.3d at 1176 (reversing ALJ's decision where ALJ did not address conflict between level-three reasoning and limitation to simple and routine work tasks); see also Haddock, 196 F.3d at 1091 (“[T]he ALJ must investigate and elicit a reasonable explanation for any conflict between the Dictionary and expert testimony before the ALJ may rely on the expert's testimony as substantial evidence to support a determination of nondisability.”); id. (The ALJ is always responsible for “[q]uestioning a vocational expert about the source of his opinion.”); Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992) (“Evidence is not substantial if it . . . constitutes mere conclusion.”).
II. Plaintiff Is Entitled to a Direct Award of Benefits.
The Court has discretion in determining whether to remand for further proceedings or award benefits. See 42 U.S.C. § 405(g) (“The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.”). However, this Court does not take its discretion lightly and is generally opposed to reaching beyond its ordinary role in these cases. That said, analogy to prior cases suggests that a directed award of benefits is appropriate after the repeated remands ordered in this thirteen-year-old case. See, e.g., Nielson v. Sullivan, 992 F.2d 1118, 1122 (10th Cir. 1993) (directing immediate award of benefits despite need for additional fact-finding because claimant had applied for benefits over four years ago and was now sixty-two years old); Railey v. Apfel, 134 F.3d 383 (10th Cir. 1998) (ordering immediate award of benefits in part because “errors in the ALJ's decision [were] obvious and unexplained, requiring reversal for a fourth time”); Ragland v. Shalala, 992 F.2d 1056, 1060 (10th Cir. 1993) (“In light of the Secretary's patent failure to satisfy the burden of proof at step five, and the long delay that has already occurred as a result of the Secretary's erroneous disposition of the proceedings, we exercise our discretionary authority to remand for an immediate award of benefits.”); Wegner v. Astrue, 08-cv-00703, 2009 WL 3158129 at *12 (D. Colo. Sept. 28, 2009) (finding “outright reversal and award of benefits is appropriate” where “Plaintiff ha[d] been seeking benefits … for over six (6) years,” the case had “already been remanded once,” and the ALJ “failed to conduct adequate fact finding”).
In Morgan v. Colvin, Judge Blackburn faced a similar inquiry and found that:
Even if there were some remote question in this court's mind as to the propriety of directing an award of benefits in this case, I nevertheless would exercise my discretion in that regard here. See Nielson v. Sullivan, 992 F.2d 1118, 1122 (10th Cir. 1993). Plaintiff filed her application for disability insurance benefits in 2001. See Adamson v. Astrue, 2012 WL 4378120 at *4 (D. Colo. Sept. 25, 2012) (length of time the matter has been pending relevant factor in determining whether to direct award of benefits) (citing Salazar v. Barnhart, 468 F.3d 615, 626 (10th Cir. 2006)). Nearly thirteen years and three administrative hearings and decisions later, the Commissioner still has been unable to articulate any justifiable basis for denying plaintiff a full award of benefits. Moreover, plaintiff is now 65 years old. All these considerations lead me to conclude that there is no reason to further delay an award of benefits to which plaintiff plainly is entitled. See Railey v. Apfel, 1998 WL 30236 at *4, 134 F.3d 383 (10th Cir. Jan. 9, 1998); Emory v. Sullivan, 936 F.2d 1092, 1095 (10th Cir. 1991); Nielson, 992 F.2d at 1122.68 F.Supp.3d 1351, 1358-59 (D. Colo. 2014).
Here, Plaintiff first filed for disability benefits in February 2010. (AR 113.) Between February 2010 and July 2020, the ALJ thrice denied Plaintiff's disability claims and was thrice reversed by reviewing tribunals. (See AR 113-27, 133-35, 13-26, 653, 550-68, 1485.) On the most recent appeal, the SSA Commissioner appears to have conceded the ALJ's no-disability finding was flawed, requesting only that the district court remand the case for further proceedings rather than directly enter an award of benefits. See Motion to Remand, Doc. No. 16, Case No. 1:20-cv-245-REB. The district court granted that request in 2020, giving the Commissioner another chance to meet his step-five burden and prolonging Plaintiffs decade-long wait. (See AR 1486.) Now, thirteen years and four appeals after Plaintiff first sought disability benefits, this Court is unwilling to again extend Plaintiffs wait while the Commissioner again attempts to satisfy its evidentiary burden; Plaintiff is entitled to an immediate award of benefits. See Sisco v. U.S. Dep 't of Health & Human Servs., 10 F.3d 739, 746 (10th Cir. 1993) (The Commissioner “is not entitled to adjudicate a case ad infinitum until it correctly applies the proper legal standard and gathers evidence to support its conclusion.” (internal citation omitted)); see also Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (“Allowing the Commissioner to decide the issue again would create an unfair ‘heads we win; tails, let's play again' system of disability benefits adjudication.”).
CONCLUSION
For the reasons set forth above, the Court ORDERS:
1) The Commissioner's conclusion finding Plaintiff not disabled is REVERSED;
2) JUDGMENT SHALL ENTER in favor of Plaintiff against the Commissioner; and
3) The Commissioner is DIRECTED to award Plaintiff benefits. Dated July 7, 2023.
BY THE COURT: